Reported in The Australian today are statistics released by the Family Court that fathers who litigate over children’s “custody” are more likely to succeed than by settling with the mother.

This is not an outcome attributable to the recent amendments to the Act. It has ever been thus. These cases that run to trial are generally those where serious issues relating to a father or mother’s parenting ability arise. It is unsurprising that fathers’ success rate is higher.

This entry was posted
on Tuesday, March 24th, 2009 at 9:59 am and is filed under Children, Courts.
You can follow any responses to this entry through the RSS 2.0 feed.
You can skip to the end and leave a response. Pinging is currently not allowed.

One Response to “Dads’ success at trial nothing new”

It also looks like dads are doing better on appeals too. In the recent Full Court decision of Rosa [2009] Fam CAFC 81, the Full Court dismissed a mother’s appeal to relocate with a child to Sydney from rural Queensland. Feminists are up in arms.

Recently, I had a crack at po-mo feminists for staying silent when mothers want to change parenting arrangments because the person who had been in loco parentis (the “father”) turned out not to be the biological father – after a DNA test or the like.

But maybe there is something in their argument here. In Rosa, Dad said “I don’t care where you send the child, I’m staying in Queensland.” Mum said, “I’ll never leave my daughter.” The Full Court then found, naturally, that there could be no shared responsibility or care of the child in Sydney. Dad simply would not move. Then, following the reasoning in Goode, mum’s case collapsed.

I’m not sure that’s fair. Mum clearly showed a greater willingness to prioritise her parenting. She acted selflessly. The father not. In those circumstances, I think there is an argument that says that in that context, shared responsibility and shared caring should not be equal.

The problem is, the 2006 amendments present presumptions and a somewhat static reasoning process. In 2007, North SC brilliantly dismantled the amendments in his speech to practitioners at the FLPA residential conference. I agree. Rosa is yet another case where the Court’s discretion is hamstrung by the engineering of the 2006 amendments.

Subscribe to email updates.

Disclaimer
The information contained on this site is for general guidance only. No person should act or refrain from acting on the basis of such information. Appropriate professional advice should be sought based upon your particular circumstances because the application of laws and regulations undergo frequent changes. For further information, please do not hesitate to contact Barry.Nilsson by email at enquiries@bnlaw.com.au or view our Legal Notices.